Cloud Capital Terms of Service

These Cloud Capital Forecasting Terms of Service (this "Agreement") are a legally binding contract between you ("Customer", "you", or "your") and Cloud Capital ("CC", "we", "us", or "our") that govern your access to and use of our cloud spend forecasting and onboarding software-as-a-service platform  (the "Service"). By creating an Account, clicking to accept, or otherwise accessing or using the Service, you agree to be bound by this Agreement. If you are accepting this Agreement on behalf of a company or other legal entity, you represent that you have authority to bind that entity, and "Customer" will mean that entity. Capitalized terms have the meanings set out in Annex A. The parties agree as follows:

1. Program
   
   1. Service. The Service is a web-based SaaS platform that Customer may use for one or both of the following purposes: (a) to connect to help Customer forecast future cloud spend and potential savings opportunities (the "Forecasting Service"); and (b) to complete onboarding steps for CC optimization or rebate programs, including KYB and credit checks and connecting financial, billing, and payment systems (the "Optimization Onboarding") arise only under a separate Optimization Agreement and Order.
   2. Support. CC will provide commercially reasonable support for Customer's use of the Service, including advisory guidance relating to forecasting of cloud spend and the use of the Service, during normal business hours via email, video calls, and through Documentation. Support does not include operational management of Customer's Cloud Provider Services.
   3. Fees. The Service is provided without charge under this Agreement. Any future paid features will be subject to separate terms.
   4. Cloud Operations. Customer’s Cloud Provider Services remain governed solely by its Cloud Provider Agreements. Customer is responsible for how those services and related data are used and secured. Unless agreed in writing, CC does not operate or modify Customer’s cloud environment and is not liable for unauthorized access or configuration of Cloud Provider Services.
   5. Service Usage. Customer will ensure each User has a separate Account, keep credentials confidential, prohibit sharing, promptly notify CC of any suspected compromise, and, except to the extent caused by CC's breach, is responsible for all activity under its Accounts. Customer may use the Service only for its internal business purposes and will not, and will not allow any third party to: (a) give access to anyone other than its Users; (b) copy, modify, or reverse engineer the Service except to the extent required by Law; (c) use the Service to provide services to third parties, develop or improve a competing product, or benchmark or publish performance results without CC's prior written consent; (d) introduce harmful code; or (e) interfere with the operation or security of the Service.
2. Data Access and Processing
   
   1. Data Access and Use. To the extent Customer elects to use the Forecasting Service, Customer will provide CC continuous, read-only, programmatic access to its Cloud Provider Billing and Usage Data and such related Business Metrics and Engineering Initiatives as CC reasonably needs to provide the Forecasting Service. To the extent Customer elects to use the Optimization Onboarding, Customer will provide CC the data reasonably required to complete KYB and credit checks, and payment configuration. All such data described in this Section 2.1 is "Business Data". As between the parties, Customer owns all rights in Business Data. Customer appoints CC as its data processor (or equivalent term under Data Protection Laws) to process Business Data only to: (a) provide, operate, maintain, secure, and support the Service, including operating and improving CC forecasting, analysis, and risk models used in the Service; and (b) create de-identified or aggregated statistics, benchmarks, models, risk metrics, and similar information that do not identify Customer or any individual ("Derived Data"). CC may use Derived Data as controller for its internal business purposes, including analytics, benchmarking, product improvement, and financing or securitization analysis, provided that Derived Data does not identify Customer or any individual, and subject to CC's confidentiality obligations, applicable Laws, and Section 5.1. The Service generates reports, Forecasted Cloud Spend, savings analyses, and similar outputs from Business Data (together, "Output Data"). CC grants Customer a non-exclusive, worldwide, royalty-free, non-transferable license to use Output Data during and after the Term for Customer's legitimate business purposes, subject to confidentiality obligations. Except for Registration Data used to create and manage Accounts, Customer will not send Personal Data to the Service as part of Business Data unless the parties agree in writing that CC will process it under this Agreement and applicable Laws, including Data Protection Laws. For Registration Data, CC acts as an independent controller and will process Registration Data only to: (i) create and manage Accounts; (ii) provide, secure, and support the Service; (iii) manage the relationship with Customer, including related communications; and (iv) comply with applicable Laws, including Data Protection Laws.
   2. Data Accuracy and Updates. Customer will use reasonable efforts to ensure that Business Data it provides to the Service is accurate in all material respects and reasonably up to date, in line with Customer's internal planning processes. Customer will notify CC, as early as reasonably practicable, of any Business Metrics or Engineering Initiatives that Customer reasonably expects to materially change the profile of its Cloud Provider Services usage. For clarity, if Customer uses the Service solely for Optimization Onboarding, this obligation is limited to the data reasonably required for those onboarding features.
3. Term and Termination
   
   1. Term. This Agreement starts on the date Customer first accepts it or first accesses the Service, whichever is earlier, and continues until terminated as described in this Section 3 (the "Term").
   2. Termination. Customer may terminate this Agreement by providing written notice to CC (email is sufficient) and by closing its Accounts and stopping all use of the Service. Customer may also request that CC delete its Accounts by providing written notice to CC. CC may suspend or terminate Customer's access to the Service or this Agreement: (a) with reasonable notice, where CC discontinues the Service in whole or in part; or (b) immediately, if Customer materially breaches this Agreement and, if curable, does not cure the breach within 30 days after CC notifies Customer, or if CC reasonably believes Customer's use of the Service: (i) poses a security risk; (ii) could harm the Service or other customers; or (iii) could expose CC or others to liability. 
   3.  Effect of Termination. Upon termination of this Agreement: (a) Customer's right to access and use the Service will end; and (b) CC may deactivate or delete Customer's Accounts. For a period of up to 30 days after termination, Customer may export Business Data and Output Data from the Service using any export features provided in the Service, unless CC terminates this Agreement due to Customer's material breach. After that period, CC is under no obligation to store Business Data or Output Data and may delete or anonymize them in its discretion, subject to Section 2 and Section 5.1. Termination or expiration of this Agreement will not affect any other written agreement between Customer and CC, including any Optimization Agreement, and does not relieve Customer of any obligation under such agreements to maintain data integrations, provide Business Data, or use Output Data in the manner required thereunder.
   4. Survival. Without limiting anything in this Agreement, Sections 2, 3.3, 4, 5, and Annex A will survive any termination or expiration of this Agreement, together with any other provisions that by their nature are intended to survive.
4. Representations, Warranties, Liability, and Indemnity
   
   1. Representations and Warranties. CC and Customer each represent and warrant to the other that: (a) it has full power and authority to enter into and perform this Agreement; (b) the execution, delivery, and performance of this Agreement has been duly authorized; and (c) its performance hereunder does not breach any other agreement to which it is bound. Customer represents and warrants that: (i) it always has been, and will continue to be, in full compliance with Customer's Cloud Provider Agreement(s); and (ii) it has all rights, licenses, permits, qualifications, and consents necessary to perform its obligations hereunder.
   2. Disclaimer. CC warrants that, during the Term, the Service will operate in all material respects as described in the Documentation when used in accordance with this Agreement (the "Limited Warranty"). Except for the Limited Warranty and to the extent permitted by Law, the Service is provided "as is" and CC and its Affiliates and licensors make no other warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, quiet enjoyment, or arising from course of dealing or usage of trade, and do not warrant that the Service will be uninterrupted, error free, secure, or free of harmful components, or that data will not be lost or altered. Nothing in this Agreement limits any non-excludable statutory rights. Customer understands that the Service and Output Data are informational tools to support Customer's own planning and decision making, are based on Business Data and assumptions Customer provides, and do not constitute financial, accounting, legal, tax, or other professional advice and do not guarantee future cloud usage or costs. Customer remains solely responsible for its own decisions and any actions it takes based on its use of the Service or Output Data.
   3. Liability. To the fullest extent permitted by Law, neither Party is liable to the other for any indirect, incidental, special, consequential, or punitive damages, or for loss of profits, revenue, goodwill, or data, even if advised such damages were possible. This exclusion does not apply to: (a) Customer's payment obligations (if any); (b) a Party's breach of Sections 2.1 or 5.1; (c) a Party's indemnification obligations under Section 4.4; (d) fraud, gross negligence, or willful misconduct; or (e) any liability that cannot be excluded under Law. Except for: (i) the categories of liability listed in the previous sentence, and (ii) any liability that cannot be limited under Law, each Party's total aggregate liability arising out of or relating to this Agreement will not exceed USD 10,000. For the categories of liability listed in (b) and (c) above, and for any proven breach by CC of Data Protection Laws in its Processing of Personal Data under Section 2.1, each Party's total aggregate liability arising out of or relating to those matters will not exceed USD 250,000 or, if higher, any non-excludable minimum required by Law. The limits in this Section 4.3 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise, and will apply even if any limited remedy fails of its essential purpose.
   4. Indemnification. Customer will indemnify and defend CC against any third-party claim arising from: (a) Customer's breach of this Agreement or applicable Laws; (b) Customer fraud or misrepresentation; or (c) allegations that data supplied by Customer (including any billing, usage, or other information that Customer provides to the Service) infringes or misappropriates third-party rights, and will pay resulting damages, costs, and reasonable attorneys' fees. CC will indemnify and defend Customer against any third-party claim alleging that the Service, when used by Customer as permitted under this Agreement, infringes a patent, copyright, trademark, or trade secret, or arising from CC's breach of Section 5.1 or applicable Data Protection Laws in its Processing of Personal Data under Section 2.1, and will pay resulting damages and reasonable costs finally awarded. The indemnified Party must promptly notify the indemnifying Party in writing of the claim, give it sole control of the defense and settlement, and provide reasonable cooperation at the indemnifying Party's expense; failure to notify limits obligations only to the extent of material prejudice. The indemnifying Party may not settle any claim that admits liability or imposes non-monetary obligations on the indemnified Party without its prior written consent, not to be unreasonably withheld. For any claim that Customer's permitted use of the Service infringes third-party rights, CC may, at its expense: (i) procure the right for Customer to continue using the Service; (ii) modify or replace the Service so it is non-infringing with substantially equivalent functionality; or (iii) terminate the affected portion of the Service. This Section 4.4 sets out each Party's exclusive indemnity obligations under this Agreement. The higher liability cap in Section 4.3 for excluded categories applies to indemnifiable claims under this Section 4.4.
5. General Terms
   
   1. Confidentiality. Each Party ("Recipient") will use the other's Confidential Information only to perform this Agreement, protect it with at least reasonable care, and disclose it only to persons who need to know and are bound by similar obligations. Recipient may disclose Confidential Information if required by Law, after giving prompt notice where lawful and limiting disclosure to what is required. On request or termination, Recipient will return or delete Confidential Information within a commercially reasonable time unless retention is legally required, and this Section will survive for 3 years after termination. Notwithstanding the foregoing, CC may disclose Business Data, Output Data, and Derived Data to its financing and securitization counterparties, including any special purpose vehicle, trustee, security agent, lender, investor, rating agency, backup or successor servicer, and their professional advisers solely in connection with any financing or securitization of receivables relating to CC's services to Customer, provided such recipients are bound by written confidentiality obligations at least as protective as this Section 5.1 and CC complies with applicable Data Protection Laws. Disclosures made in accordance with Section 2.1 will not breach this Section 5.1.
   2. Intellectual Property. Except as expressly stated in this Agreement, no intellectual property rights are granted. As between the Parties, Customer owns all rights in Business Data, and CC and its licensors own the Service, Documentation, Output Data, Derived Data, and all related materials, technology, and improvements. CC may use any feedback or suggestions from Customer without restriction and without obligation.
   3. Publicity. CC may use Customer's name, logo, and trademarks to identify Customer in customer lists, websites, presentations, and other promotional materials. CC will cease further use at Customer's written request.
   4. Modifications. CC may change or discontinue non-material features of the Service at any time. For any change that materially reduces functionality or materially limits Customer's use of the Service under this Agreement, CC will give at least 30 days prior written notice. If Customer does not accept a material change, it may terminate this Agreement without penalty by giving written notice before the change takes effect.
   5. Assignment. Either Party may assign this Agreement, in whole or in part, without the other Party's consent to: (a) an Affiliate; or (b) a successor in a merger, reorganization, acquisition, or sale of substantially all relevant assets, with written notice, provided that failure to provide such notice will not affect the validity or effectiveness of the assignment. The assigning Party remains responsible for its pre-assignment obligations unless released in writing. Any other assignment requires the other Party's prior written consent, not to be unreasonably withheld or delayed. Any attempted assignment in violation of this Section 5.5 is void. This Agreement is binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
   6. Waivers and Severability. Waivers must be signed by the waiving Party's authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
   7. Contracting Entity. The CC entity that is party to this Agreement and provides the Service to Customer is: (a) Cloud Capital Technologies Ltd, a company incorporated under the Laws of England and Wales, if Customer's principal place of business is in the United Kingdom or Europe; or (b) Cloud Capital Technologies Inc., a corporation organized under the Laws of the United States, if Customer's principal place of business is in the United States or anywhere else that is not covered above.
   8. Governing Law; Venue. If Customer is based in the UK or Europe (including the EU), English Law applies and the courts of London, England have exclusive jurisdiction and venue; otherwise, New York Law applies and the state and federal courts in New York, New York have exclusive jurisdiction and venue. Each Party will comply with Laws, and the prevailing Party in any enforcement action is entitled to reasonable attorneys' fees and costs.
   9. Counterparts; Notices. This Agreement may be signed in counterparts, including electronically. Formal notices under this Agreement must be in writing and sent by courier or email to the contact details specified by each Party and are deemed received on delivery (courier) or when sent (email, or the next business day if outside business hours). Operational notices may be by email or through the Service.
   10. Subcontractors. CC may use subcontractors to perform the Service and remains responsible for their compliance with this Agreement and for overall performance. CC will ensure that any subcontractor that processes Business Data or Personal Data is bound by confidentiality and data protection obligations that are at least as protective as this Agreement and compliant with Data Protection Laws.
   11. Export and Sanctions. Each Party will comply with applicable export, re-export, and sanctions Laws. Customer represents it is not listed on any prohibited or restricted party list and will not use the Service in violation of such Laws.
   12. Force Majeure. Neither Party is liable for delay or failure caused by events beyond its reasonable control; the affected Party will mitigate and resume performance as soon as reasonably practicable.
   13. Relationship of the Parties. The Parties are independent contractors and nothing in this Agreement creates a partnership, joint venture, agency, or fiduciary relationship.
   14. Entire Agreement. This Agreement is the entire agreement between the parties regarding the Service, except as expressly provided in this Agreement, and supersedes any prior or contemporaneous agreements or understandings relating to the Service. Any Optimization Agreement, Order, or separately signed terms of service between Customer and CC remains in force, governs its subject matter, and will prevail over this Agreement to the extent of any conflict for that subject matter. Customer's acceptance of this Agreement in the Service will not amend or supersede any such signed terms. Any reference in any Optimization Agreement to ‘TOS’, ‘Terms of Service’, or section numbers in prior CC terms of service will be construed, for interpretive purposes only, as a reference to this Agreement and the corresponding provision; if no reasonable mapping exists, the Parties will interpret the reference in good faith to give effect to its intent.

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Annex A – Definitions

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1. "Account(s)" means any user accounts that Customer or its Users create to access and use the Service.
2. "Affiliate" means any entity directly or indirectly owned or controlled by a Party, where "control" means owning at least 50 percent of voting interests or having the power to direct its management or affairs.
3. "Business Data" has the meaning given in Section 2.1 and includes any data or information that Customer or its Users submit to or make available through the Service, including Cloud Provider Billing and Usage Data, Business Metrics, and Engineering Initiatives that CC Processes to provide the Service.
4. "Business Metrics" means the commercial and operational drivers that are reasonably expected to correlate with Customer's Cloud Provider Services consumption, including but not limited to customer count, revenue, transactions, and usage levels.
5. "Cloud Provider" means a CC authorized supplier of cloud computing services, each as applicable in the context of its use herein.
6. "Cloud Provider Account(s)" means Customer's cloud account(s) with a Cloud Provider for the Cloud Provider Services.
7. "Cloud Provider Agreement(s)" means, as applicable, each and all applicable agreement(s) and related materials that govern the commercial relationships between Customer and Cloud Providers.
8. "Cloud Provider Billing and Usage Data" means billing, usage, and cost information relating to Customer's Cloud Provider Services that is made available to CC through Cloud Provider integrations.
9. "Cloud Provider Services" means each of the services made available by a Cloud Provider or its Affiliates.
10. "Confidential Information" means non-public information disclosed by or on behalf of a Party ("Discloser") to the other ("Recipient") that is marked confidential or should reasonably be treated as confidential. 
11. "Data Protection Laws" means all applicable Laws and regulations relating to the Processing of Personal Data, privacy, and data security, including GDPR, CCPA, and similar Laws.
12. "Derived Data" means de-identified, aggregated, statistical, analytical, or other derivative data that CC generates from Business Data or from use of the Service that does not identify Customer or any individual.
13. "Documentation" means the then current version of CC's usage guidelines and standard technical documentation for the Service that CC makes generally available to its customers.
14. "Engineering Initiatives" means planned or in-flight changes to Customer's Cloud Provider Account structure, technical architecture, workloads, regions, or use of Cloud Provider Services reasonably expected to materially increase, reduce, or re-profile Customer's consumption of Cloud Provider Services.
15. "Forecasted Cloud Spend" means the projected cloud spend for Customer generated by the Service from Business Data.
16. "Law(s)" means all applicable relevant local, state, federal, and international Laws, regulations, and conventions, including those related to data privacy and data transfer, international communications, and export of data.
17. “Optimization Agreement” means any separate written agreement between Customer and CC governing CC’s commitment optimization program (the “Optimization Program”), as amended from time to time in accordance with its terms.
18.  “Order” means an order form or online ordering process that describes the Services being purchased by Customer.
19. "Output Data" means Forecasted Cloud Spend, savings analyses, recommendations, and similar results that the Service generates.
20. "Payment Method" means any pre-authorized bank account or payment instrument Customer configures in the Service for use under a separate written agreement.
21. "Personal Data" means any information relating to an identified or identifiable natural person, including any information defined as personal data, personal information, or similar under applicable Data Protection Laws.
22. "Registration Data" means the contact and account information that Customer or its Users provide to CC to create and administer Accounts for the Service.
23. "Service" means the then current platform provided by CC for the purpose of forecasting and analyzing cloud infrastructure costs and for completing onboarding, credit, billing, and payment setup for CC optimization and rebate programs, and other related services that are identified in this Agreement.
24. "User(s)" means Customer's employees, contractors, or other personnel that Customer authorizes to access and use the Service on its behalf.
    

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